United States v. Pamela S. Barnett

961 F.2d 1327, 1992 U.S. App. LEXIS 7455, 1992 WL 80134

• Court: Court of Appeals for the Seventh Circuit
• Decided: April 22, 1992
• Docket: 91-2309
• Status: Published

Opinions

PER CURIAM.

Pamela S. Barnett pleaded guilty to two counts of mail fraud, in violation of 18 U.S.C. § 1341. The district court sentenced Barnett to five years’ probation.¹ Barnett subsequently pleaded guilty to a state charge of deceptive practices for writing a bad check. The government moved the district court to revoke Barnett’s probation. The district court found that Barnett had violated the terms of her probation by committing a state crime and sentenced her to two concurrent three-year terms of imprisonment. Barnett appeals her sentence, arguing that the district court abused its discretion by failing to consider the mitigating evidence she offered at the sentencing hearing. -

“ ‘A sentence which is within the limits established by statute under which it is imposed will not be vacated upon review unless the sentencing judge relied upon improper considerations or unreliable information in exercising his discretion or failed to exercise any discretion at all in imposing the sentence.' ” United States v. Szabo, 854 F.2d 251, 253 (7th Cir.1988) (quoting United States v. Harris, 761 F.2d 394, 402-03 (7th Cir.1985)). Barnett’s sentence falls within the statutory maximum of ten years. (Two counts of mail fraud at five years each. 18 U.S.C. § 1341.) Barnett does not contend that the judge relied on any improper consideration. Thus, we must determine whether the district judge failed to exercise any discretion in imposing the sentence.

Barnett called two witnesses at the sentencing hearing. Barnett’s employer, Terry Braidwood, praised her work as a program secretary at St. Mary’s Square Living Center. Barnett’s pastor, Gerry Comstock, testified that she was a valued volunteer worker at the church. He further testified that he had counseled Barnett and that she had progressed from “a very worried, stressed person, into one that is a much more centered and calm person.” Barnett exercised her right of allocution and reiterated these mitigating circumstances. In addition, she stated that she had very close ties to her daughter and granddaughter.

The court found that Braidwood’s testimony established that Barnett had “some mental abilities and ... [was] not dumb.” The court reasoned that Barnett’s mental capability made the commission of the state crime and resultant probation violation “even more aggravating.” The court further warned Barnett that after she is released from prison, she will either “do as Reverend Comstock has indicated ... that is, get [herself] in order and continue here on the path of an honorable citizen or [she will] not. One or the other. And, if not, [she will] get caught again and ... [will] be sentenced again.”

This is not a case where the district court “failed to exercise any discretion at all.” When initially sentencing Barnett to probation, the judge warned her that further offenses would result in imprisonment. He was entitled to carry through. The record indicates that the district court considered Barnett’s evidence but found imprisonment necessary to deter her from committing future crimes. Barnett’s sentence was less than a third of the maximum available to the district judge.² “As long as it appears that the sentencing judge is aware of the mitigating factors, and that he has considered them in good faith, the degree of weight put on those factors will seldom be questioned.” United States v. Neyens, 831 F.2d 156, 160 (7th Cir.1987) (citation omitted).

Affirmed.

1 . Because the offenses to which Barnett pleaded guilty occurred before November 1, 1987, she was not sentenced under the federal sentencing guidelines.

2 . The district judge sentenced Barnett to three years in prison on each count to run concurrently and anticipated that under the old sentencing system, which allows parole, she will serve approximately one year.